ML20127B523

Requests That Documents Identified in Discovery on Contention 41-G Re Harassment Be Made Part of Record in Proceeding for Possible Consideration on Appeal.Copy of Documents Also Requested.Related Correspondence

ML20127B523
Person / Time
Site:	Harris
Issue date:	06/19/1985
From:	Guild R EDDLEMAN, W., GUILD, R.
To:	Bright G, Carpenter J, Kelley J Atomic Safety and Licensing Board Panel
References
CON-#285-541 OL, NUDOCS 8506210509
Download: ML20127B523 (2)

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Irr c.uil.n DDcogg3 anonw y at un POST OFFICE BOX 12097 J CHARLESTON. SOUTH CAROLINA 29412

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f TELEPHONE 803/NfMt3g 254-8132 i 1

2 - June 19, 1985 00 METED i

L!SNac j ' Judge James L. Kelley Judge Glenn O. Bright Chairman Atomic Safety and Licensing g rd Atomic Safety and Licensing Board U.S. Nuclear Regulatory CommiMioJfl 21 All :40 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 0FFmg 00CXEIlt4G gr A3g$7pg

, . Judge James H. Carpenter BRANCH

Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 In the Matter of Carolina Power & Light Company, et a_l,.

(Shearon Harris Nuclear Power Plant) 4 Docket No. 50-4000L .

Dear Judges:

Intervenor Wells Eddleman seeks production of certain documents which

, were identified in discovery on contention 41C- the harnunmenL contentjon.

These documents were submitted to the Board by CP&L for in camera, ex parte review over our objection. We request that you make these documents a part

of the record in this proceeding for possible consideration on appeal and that copies'of these documents be provided to us for our review and use. This is 1 also a request for the production of these documents pursuant to the Freedom

'of Information Act, 5 U.S.C. 552, and the Commission's implementing regulations.

10 C.F.R. Part 9. These documents were described in our motion to compel of May 7, 1985, Tr. 7556-67, as follows: " documents related to (the) Inspector

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j Review Panel, its final report, the audit or report of Mr. Parks Cobb with respect to that pancl's work and the underlying documents behind that report,"

. and "the report and associated docutients with respect to the individual charge of harassment by a quality assurance or construction inspector at the Harris i site." Tr. 7559; 7563.

We believe that these documents properly represent a part of the record of this proceeding upon which the decisions of this Board must be based.10 t C.F.R. Part 2. Appendix A. V(e). We reiterate our earlier objections to the r

in camera, g parte consideration of these materials by the Licensing Board and state here our disagreement with the assertions by CP&L that the authority cited in its May 20, 1985, letter support use of such procedure here. A review of the cases relied upon by the company reveals that they neither individually l nor collectively stand for the overbroad proposition of law asserted by CP&L.

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Juilgen Kel1 ey, Hright o n.1 Ca i peu t e r .

June 19, 1985 Page 2 .

None of the cases etted considered a disputed une of an in camera review procedure, and each of the cases involved the resolut lon of soinething more than a mere relevance question, an here, such an more appropriate and sensitive questions of attorney-cl ient and execut ive privilege. The Court in Wood v. lirier, 54 F.R.D. 7 at 9 (E.D. PA 197')), for example, notes that it undertook 13 camera review only upon stipulation of the parties and that it merely assumes the propriety'of such a procedure. The Wood Court explicitly cites contrary authority (not identified by CP&L which claimed "(t)here is no question regarding the propriety of the procedure . . .") which we submit is

. applicable here. In the case cited Natta v. Z1etz, 405 F.2d 99 at 111 (1968),

the Seventh Circuit noted and applied the Supreme Court's criticism of 13 camera, jgc parte judicial review of documents:

Nor is it realistic to assume that the trial court's judgement

• as to the utility of material for impeachment or other legitimate purposes, however conscientiously made, would exhaust the possibilities.

In our adversary system, it is enough for judges to judge. The determination of what may be useful to the defense can properly

- and effectively be made only by an advocate.

Dennis v. United States, 384 U.S. 855, 874-875, 86 S.Ct. 1840, 1851, 16 L.Ed.2d 973 (1966). We urge that the decisions on the relevance of the subject documents, here, should likewise have been made only after adversary review and effective opportunity to be heard. These documents should be made a part of the record and served on the parties in order that we may press our

.- position on review of the Board's decision.

As noted above we independently seek' production of these documents pursuant to the Freedom of Information Act. By copy of this letter we are also submitting this request to the Director of the' Office of Administration, as provided in 10 C.F.R. 9.8. Since these documents may contain factual information bearing on the safety of the Harris facility which may form the basis for new contentions in this proceeding we seek expedited consideration of this FOIA request.

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Robert Guild Counsel for Mr. Eddleman CC Director, Office of Administration Service list 0

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